In any legal matter it is worth returning to the primary statutory material. In the case of the present controversy over Article 16 of the Northern Ireland Protocol, this means looking at the Protocol itself.
16.1 If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
It has been pointed out before that the preconditions for the UK employing Article 16 are clearly in place. Trade has been diverted from GB-NI to EU-NI. The EU freely admit this. They are very pleased about it.
Nevertheless, the EU remain clear in their own minds that any use of Article 16 is a fundamental attack on the Withdrawal Agreement, such as to revert to the threats of “no deal” that they commonly used when Theresa May was Prime Minister. They are not minded to limit themselves to the sort of “rebalancing” measures anticipated by Article 16.2. Ironically, given how keen the EU were on enforcement mechanisms for Brexit agreements, the EU has no wish to follow those procedures, but rather threatens to blow up the entire relationship unless it gets its way.
This begs a question: Why was Article 16 included in the first place?
The simple answer is, startlingly enough, that the EU put it there.
This should be a surprise to many. The history of the Northern Irish protocol is that the EU demanded that the UK concede indefinite alignment of Northern Ireland to “those rules of the Internal Market and Customs Union which… support… the protection of the 1998 Agreement” until the EU agreed to an alternative.[1] Theresa May conceded this in the misnamed “Joint Report” of December 2017, and she then left it to the EU to prepare the first draft of the Treaty.
The EU thus took the role of the Allies at Versailles in presenting a defeated foe with the terms.[2] Unsurprisingly, the EU interpreted “those rules of the Internal Market and Customs Union” to mean the entirety of the Single Market for goods and the Customs Union, including state aid.[3] In the rest of the negotiations, the rest of the United Kingdom moved in and out of the drafts of the Protocol, comparatively little has really changed as regards the Northern Ireland itself.
The Northern Irish Protocol is a creature of the EU’s dictation.
All of which makes it somewhat surprising that what we call Article 16 was there from the start. In the EU’s original draft we find Article 16 practically word-for-word as Article 13.1.
The only substantive change was the addition of the reference to “diversion of trade”, which is found in the November 2018 agreement.
This itself is puzzling.
The entire unwinding of Theresa May’s premiership was around her failure to get anything from the EU beyond a promise to negotiate hard to find alternatives to the Northern Irish Protocol – then called the Backstop, to emphasise the EU’s claim that they did not really like the position that they had demanded and dictated.
As Theresa May had obtained a rare concession from the EU to allow the UK to take countermeasures in the case of a diversion of trade away from GB-NI, her position should not have been so dire. If applied to its maximum potential, it is in the nature of the Protocol (as we have seen in recent months) to divert GB-NI trade, so the existence of what is now Article 16.1 should naturally force the EU to agree alternative measures.
Even absent the “diversion of trade” addition, the EU’s own version would have authorised countermeasures if the Protocol began to create societal problems by alienating Unionist opinion.
Except Article 16 was a lie.
Article 16 is essentially a copy of Articles 112 and 113 of the EEA Treaty. The EU’s drafters doubtless added it because it was standard procedure. A “safeguards” provision allows the pretence that the EU is respecting the niceties of international comity such as “sovereign equality” when dealing with its neighbours. However, the EU notoriously has no time for any of its EEA partners actually invoking those provisions -and it has usually replied to attempts with disproportionate threats. The attempt by Norway to invoke this safeguard against the Postal Services Directive is a cautionary tale as to how the EU views such provisions as having decorative value only.[4]
The EU was happy to propose Article 16.1. Later, it was happy to agree the reference to “diversion of trade”, precisely because it had no intention of abiding by Article 16.1, any more than it has allowed Articles 112 and 113 of the EEA Treaty to be used in practice.
If we look at the EU’s negotiating position, Article 16.1 could only ever have been intended as a lie.
Firstly, the EU took the view that any checks or apparatus on the Northern Ireland/Republic border would be fatal to peace in Northern Ireland.
Secondly, any risk of goods crossing into border and circulating into the Single Market was intolerable. Only at the last moment in October 2019 did the EU accept a risk based approach to the risk of goods entering the EU without paying the necessary duty.
Thirdly, as Brexit was the UK’s fault, it should accept any burden (however big) if it assisted avoiding a risk (however small) to the purity of the Single Market.
Article 16 strikes at the heart of the EU’s stated case for demanding the Protocol. If the EU had genuinely accepted that disrupting GB-NI trade or provoking Unionist opinion could justify the UK disapplying parts of the Protocol, then the EU would not have dismissed out of hand Theresa May’s various proposals in 2017 and 2018 to avoid those dangers as ‘unicorns’.
However, the provision is there and the EU agreed to it.
What is more, the EU agreed in the Johnson-renegotiation of Autumn 2019 to endorse policy aims that run entirely counter to its own absolutist position. The EU agreed to add this to the recitals to the Protocol:
“RECALLING that Northern Ireland is part of the customs territory of the United Kingdom and will benefit from participation in the United Kingdom’s independent trade policy,
HAVING REGARD to the importance of maintaining the integral place of Northern Ireland in the United Kingdom’s internal market,
UNDERLINING the Union’s and the United Kingdom’s shared aim of avoiding controls at the ports and airports of Northern Ireland, to the extent possible in accordance with applicable legislation and taking into account their respective regulatory regimes as well as the implementation thereof,
DETERMINED that the application of this Protocol should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland
This links to Article 6 of the Protocol, under which the EU already committed to keep under “constant review” how to avoid restrictions at Northern Ireland’s ports. It would be a revelation to many following the present Northern Irish Protocol controversy that the EU had committed itself under the Withdrawal Agreement to constant discussions on how to reduce the burden of checks under the EU legislation applicable to Northern Ireland. The EU’s hostility to reconsidering those burdens to which it had formally agreed has been palpable.
Even more remarkably, the EU actually agreed in the Protocol to be generally open to changing the Protocol itself. The final version, tweaked in the Johnson renegotiation, said in Article 13.8 that the Protocol was open to be changed by “subsequent agreements”. This links back to the original “Joint Report” and the EU’s constant promises to Theresa May that it would negotiate hard for a replacement to the Northern Irish Protocol – whose supposedly temporary nature had originally been underlined by it being called “the Backstop”. In the original Withdrawal Agreement, “subsequent agreement” meant the final Trade agreement. However, in the Johnson-Renegotiation, this limit was removed and the EU agreed that a subsequent agreement might be reached at any time.
So much for the EU’s protestations that the Protocol was absolutely final.
The reality is that the EU never expected the Johnson-Renegotiation to matter. When they agreed to the modest changes in the autumn of 2019, the EU had high hopes that the House of Commons would overturn Brexit. Even if there were an election, the conventional wisdom was that, if Johnson did not deliver Brexit by the end of October, then the Conservatives were doomed. The changes given to Johnson were simply an insurance policy by the EU, so they could bank most of the gains of the negotiation without hazarding them in a no-deal scenario. The only thing that could go wrong was if the Conservatives won a majority large enough to finally confront the EU.
It must have been mortifying for the EU to wake up on 13 December 2019 to realise that the concessions it had made might actually have meaning. Hence their reluctance to carry out what they agreed to, while trying to put the blame of the British government.
Conclusion
The EU is fond of saying that the Protocol is painstakingly negotiated. It is largely as they dictated. Those parts that have been changed through actual negotiation represent a steady movement away from the EU’s absolutist approach.
Throughout the Brexit negotiations, the EU promised that it would negotiate alternatives and Barnier had talked earnestly of de-dramatising GB-NI border checks. The contrasting reality post 31 December 2020 was more border checks than on the border with Belarus and Ukraine and a declaration that the Protocol could never change.
Unfortunately for the EU’s absolutism, what it has formally agreed:
- Allows the UK to take countermeasures insofar as the Protocol leads to a diversion of trade.
- Requires the Protocol to be interpreted not just with the EU’s concerns in mind, but also “the importance of Northern Ireland’s integral place in the United Kingdom’s Single Market”.
The result is that the EU is required to do what it promised. It must ask itself whether particular products represent a threat to the integrity of the Single Market. This means asking itself whether there is a genuine risk of would be parallel exporters using Northern Ireland as a base to bring products illegally to sell in the Single Market. The EU cannot blithely assert that N. Ireland must have the entire Single Market for goods package. It must seek to minimise checks – carry through on Barnier’s much repeated promise of de-dramatizing – as far as possible. These are not compromises by the EU, they are what the EU promised.
Ironically, the EU are right about the protocol being “painstaking”, just not in the sense they mean. It certainly was not the EU’s intention, but the compromises created a balance. The EU cannot push the logic of its position and the formal powers the Protocol gives it to enforce its rules on GB-NI trade without creating the conditions for the UK to invoke Article 16. However, the UK can only invoke Article 16 to undo the diversion of trade or serious economic (or societal or environmental) difficulties – it cannot simply be used to wish away the Protocol as a whole, much as it is inherently an offence to the basic principles of international comity.
In short, the EU cannot rely on the low-risk of highly theoretical problems to impose solutions that divert GB-NI trade; and the UK can only undo the EU’s power insofar as it stops the diversion of trade. As long as the EU takes a half-way absolutist approach, right is on the UK’s side in the use of Article 16.
‘Titus’ is a lawyer who prefers to remain anonymous.
[1] Alternatively, the Protocol could be superseded by the ultimate UK-EU trade agreement. However, we can see today the limits of this according to the EU’s interpretation. Unless the agreement places the UK within the EU’s legislative jurisdiction, it would not be enough.
[2] https://ec.europa.eu/info/sites/default/files/draft_withdrawal_agreement.pdf.
[3] The European Commission – with its policy of “We are all Irish” – is thus supervising state aid in a society which is not just deeply divided, but where public spending is unusually high.
[4] https://www.bbc.co.uk/news/uk-politics-47734583.
